presided in this court soon after the time of such revival, is said (g) to have been no friend to this method of prosecution; and, if so, the reason of such his dislike was probably the ill use which the master of the crown-office then made of his authority by permitting the subject to be harassed with vexatious informations, whenever applied to by any malicious or revengeful prosecutor, rather than his doubt of their legality or propriety upon urgent occasions. (h) For the power of filing informations, without any control, then resided in the breast of the master; and, being filed in the name of the king, they subjected the prosecutor to no costs, though on trial they proved to be groundless. This oppressive use of them, in the times preceding the revolution, occasioned a struggle, soon after the accession of king William, (i) to procure a declaration of their illegality by the judgment of the court of king's bench. But Sir John Holt, who then presided there, and all the judges, were clearly of opinion that this proceeding was grounded on the common law and could not be then impeached. And in a few years afterwards a more temperate remedy was applied in parliament by statute 4 & 5 W. and M. c. 18, which enacts that the clerk of the crown shall not file any information without express direction from the court of king's bench, and that every prosecutor, permitted to promote such information, shall give security by a recognizance of twenty pounds (which now seems to be too small a sum) to prosecute the same with effect, and to pay costs to the defendant in case he be acquitted thereon, unless the judge, who tried the information, shall certify there was reasonable cause for filing it; and, at all events, to pay costs, unless *the information shall be tried within a year after issue joined. But [*312 there is a proviso in this act that it shall not extend to any other informations than those which are exhibited by the master of the crown-office: and, consequently, informations at the king's own suit, filed by his attorneygeneral, are no way restrained thereby.

There is one species of informations still further regulated by statute 9 Anne, c. 20, viz., those in the nature of a writ of quo warranto: (43) which was shown, in the preceding book, (k) to be a remedy given to the crown against such as had usurped or intruded into any office or franchise. The modern information tends to the same purpose as the ancient writ, being generally made use of to try the civil rights of such franchises; though it is commenced in the same manner as other informations are, by leave of the court or at the will of the attorney-general, being properly a criminal prosecution, in order to fine the defendant for his usurpation as well as to oust him from his office, yet usually considered at present as merely a civil proceeding. (44)

(44) Because an information in the nature of a quo warranto is considered merely as a civil proceeding, the court of King's Bench will grant a new trial, though the verdict should have been given for the defendant. 2 T. R. 484.-CHRISTIAN.

The attorney-general, and not the courts, is vested with the discretion to file informations in the nature of a quo warranto. State v. Gleason, 12 Fla. 190, 219 et seq. (1868). A proceeding for a forcible detainer, like a quo warranto proceeding, though properly a criminal prosecution, is in the nature of a civil proceeding, so that the court will grant a new trial if the jury find for the defendant contrary to the evidence. Adam v. Robeson, I Murphey (N. C.) 392, 393 (1810).

An ex officio [Official] information of quo warranto may be filed in the supreme court by the attorney-general, or the circuit attorney of the county, as representing the state, in cases arising on behalf of the state, and without special leave of court. But where the information is at the relation of a private person, and seeks the determination

These are all the methods of prosecution at the suit of the king. There yet remains another, which is merely at the suit of the subject, and is called an appeal.

IV. An appeal in the sense wherein it is here used does not signify any complaint to a superior court of an injustice done by an inferior one, which is the general use of the word; (45) but it here means an original suit at the time of its first commencement. (7) An appeal, therefore, when spoken of as a criminal prosecution, denotes an accusation by a private subject against another for some heinous crime, demanding punishment on account of the particular injury suffered rather than for the offence against the public. As

this method of prosecution is still in force, I cannot omit to mention *313] it; but as it is very little in use, on account of the *great nicety required in conducting it, I shall treat of it very briefly, referring the student for more particulars to other more voluminous compilations. (m) This private process for the punishment of public crimes had probably its original in those times when a private pecuniary satisfaction, called a wereg ild, was constantly paid to the party injured, or his relations, to expiate enormous offences. This was a custom derived to us, in common with other northern nations, (n) from our ancestors, the ancient Germans; (46) among whom, according to Tacitus, (o) "luitur homicidium certo armentorum ac pecorum numero; recipitque satisfactionem universa domus." (p)(47) In the same manner, by the Irish Brehon law, in case of murder, the Brehon or judge was used to compound between the murderer and the friends of the deceased, who prosecuted him, by causing the malefactor to give unto them, or to the child or wife of him that was slain, a recompense which they called an eriach. (q) And thus we find, in our Saxon laws, (particularly those of king Athelstan,)() the several weregilds for homicide established in progressive order from the death of the ceorl or peasant up to that of the king himself. (s) And in the laws of king Henry I. (t) we have an account of what other offences were then redeemable by weregild, and what were not so. (u) As,

(1) It is derived from the French "appeler," the verb active, which signifies to call upon, summon, or challenge one, and not the verb neuter, which signifies the same as the ordinary sense of "appeal" English.

(m) 2 Hawk. P. C. c. 23.

(n) Stiernhook, de jure Sueon. l. 3, c. 4. (0) De Mor. Germ. c. 21.

(p) And in another place. (c. 12,) "Delictis, pro modo pœnarum, equorum pecorumque numero convicti mulctantur. Pars muleta regi vel civitati; pars ipsi qui vindicatur, vel propinquis ejus exsolvitur."" ["Those who are convicted of offences are punished by a fine of a certain number of horses and cattle. One part of the fine is paid to the king or state, the other part to the plaintiff or his relations."]

(q) Spenser's State of Ireland, p. 1513, edit. Hughes.

of a matter of private right between two private persons, special leave of the court must be had. The latter proceeding is essentially a civil one, though prosecuted by the states' attorneys, and to an extent under the forms of civil procedure. State ex rel. Hequembourg v. Lawrence, 38 Mo. 535, 538 (1866).

The superior court of San Francisco, being a court of civil jurisdiction only, has no jurisdiction in proceedings by quo warranto. People ex rel. Hughes v. Gillespie, 1 Cal. 342, 344 (1850).

(45) An appeal is the only proper method whereby to bring up a decree in chancery to the supreme court for review and revision, and when thus brought up, the whole case is before the court for that purpose.' A writ of error will not lie to a decree in chancery. Harris and Moore v. Cole, 2 Fla. 400, 401 (1848).

(46) Hubgh v. N. O. & C. R. R. Co., 6 La. Ann. 495, 513 (1851).

(47) ["The whole family receives satisfaction, and the homicide is expiated by a certain recompense in flocks and herds."]

[*314

therefore, during the continuance of this custom, a process was certainly given for recovering the weregild by the party to whom it was due, it seems that, when these offences by degrees grew no longer redeemable, the private process was still continued, in order to insure the infliction of punishment upon the offender, though the party injured was allowed no pecuniary compensation for the offence.

But though appeals were thus in the nature of prosecution for some atrocious injury committed more immediately against an individual, yet it also was anciently permitted that any subject might appeal another subject of high treason, either in the courts of common law, (w) or in parliament, or (for treasons committed beyond the seas) in the court of the high constable and marshal. The cognizance of appeals in the latter still continues in force; and so late as 1631 there was a trial by battle awarded in the court of chivalry on such an appeal of treason; (x) but that in the first was virtually abolished (y) by the statutes 5 Edw. III. c. 9, and 25 Edw. III. c. 24, and in the second, expressly, by statute 1 Hen. IV. c. 14. So that the only appeals now in force, for things done within the realm, are appeals of felony and mayhem.

An appeal of felony may be brought for crimes committed either against the parties themselves or their relations. The crimes against the parties themselves are larceny, rape, and arson. And for these, as well as for mayhem, the persons robbed, ravished, maimed, or whose houses are burned may institute this private process. The only crime against one's relations for which an appeal can be brought is that of killing him, by either murder or manslaughter. But this cannot be brought by every relation: but only by the wife for the death of her husband, or by the heir male for the death of his ancestor; which heirship was also confined by an ordinance of king Henry the First, to the four nearest degrees of blood. (2) It is given to the wife on account of the loss of her husband: therefore, if she marries again, before or pending her appeal, it is lost and gone; or if she marries after judgment, she shall not demand execution. The heir, as was said, must also be heir male, and such a one as was the next heir by the course of the [*315 common law, at the time of the killing of the ancestor. But this rule hath three exceptions:-1. If the person killed leaves an innocent wife, she only, and not the heir, shall have the appeal; 2. If there be no wife, and the heir be accused of the murder, the person who next to him would have been heir male shall bring the appeal; 3. If the wife kills her husband, the heir may appeal her of the death. And, by the statute of Glocester, 6 Edw I. c. 9, all appeals of death must be sued within a year and a day after the completion of the felony by the death of the party:(48) which seems to be only

(w) Britt. c. 22.

(x) By Donald lord Rea against David Ramsey. Rushw. vol. ii. part. 2, p. 112.

(y) 1 Hal. P. C. 349.
(z) Mirr. c. 2, 7.

(48) The right which section 284 R. S. of Ind. gives to the personal representative of a deceased person, whose death has been caused by the wrongful act or omission of another, to maintain an action against the latter within two years after the death, accrues when the death so caused occurs, whether it happens before or after the expiration of a period of a year and a day from the date of its cause. The common law rule in prosecutions for murder, appeals of death, and inquisitions of deodands, does not apply to the right of action given by that statute. Louisville, etc. R. R. Co. v. Clarke, 152 U. S. 230, 240 et seq. (1893).

By analogy, in admiralty, if it be doubtful whether the property captured as a prize belong to an enemy, it is not usual to proceed immediately to condemnation, although no claim be interposed; but if, in such a case, no claim be interposed within a year and a day, condemnation is of course to the captors. The Avery, 2 Fed. Cases, 242, 243 (1815).

declaratory of the old common law; for in the Gothic constitutions we find the same "præscriptio annalis, quæ currit adversus actorem, si de homicia ei non constet intra annum a cæde facta, nec quenquam interea arguat et accuset." (a)(49)

These appeals may be brought previous to any indictment; and if the appellee be acquitted thereon, he cannot be afterwards indicted for the same offence. (50) In like manner as by the old Gothic constitution, if any offender gained a verdict in his favor when prosecuted by the party injured, he was also understood to be acquitted of any crown prosecution for the same offence; (b) but, on the contrary, if he made his peace with the king, still he might be prosecuted at the suit of the party. And so, with us, if a man be acquitted on an indictment of murder, or found guilty and pardoned by the king, still he ought not (in strictness) to go at large, but be imprisoned or let to bail till the year and day past, by virtue of the statute 3 Hen. VII. c. 1, in order to be forthcoming to answer any appeal for the same felony, not having as yet been punished for it, though if he hath been found guilty of manslaughter on an indictment, and hath had the benefit of clergy, and suffered the judgment of the law, he cannot afterwards be appealed; for it is a maxim in law that "nemo bis punitur pro eodem delicto."(51) Before this statute was made, it was not usual to indict a man for homicide within the time limited for appeals, which produced very great inconvenience, of which more hereafter. (c)

*316] *If the appellee be acquitted, the appellor (by virtue of the statute of Westm. 2, 13 Edw. I. c. 12) shall suffer one year's imprisonment, and pay a fine to the king, besides restitution of damages to the party for the imprisonment and infamy which he has sustained; and if the appellor be incapable to make restitution, his abettors shall do it for him and also be liable to imprisonment. This provision, as was foreseen by the author of Fleta, (d) proved a great discouragement to appeals; so that thenceforward they ceased to be in common use.

If the appellee be found guilty, he shall suffer the same judgment as if he had been convicted by indictment, but with this remarkable difference: -that on an indictment, which is at the suit of the king, the king may pardon and remit the execution; on an appeal, which is at the suit of a private subject, to make an atonement for the private wrong, the king can no more pardon it than he can remit the damages recovered on an action of battery. (e) In like manner as while the weregild continued to be paid as a fine for homicide it could not be remitted by the king's authority. (f) And the ancient usage was, so late as Henry the Fourth's time, that all the relations of the slain should drag the appellee to the place of execution; (g) a custom founded upon that savage spirit of family resentment which prevailed universally through Europe after the irruption of the northern nations, and is peculiarly attended to in their several codes of law, and which prevails even now among the wild and untutored inhabitants of America; as if the finger of nature had pointed it out to mankind in their rude and uncultivated state. (h) However, the punishment of the offender may be remitted and discharged by the con

(a) Stiernh. de jure Goth. l. 3, c. 4. (b) Ibid. l. 1, c. 5.

(c) See page 335.

(d) L. 1, c. 34, 48.

(e) 2 Hawk. P. C. 392.

(f) LL. Edm. 23.

(9) M. 11 Hen. IV. 12. 3 Inst. 131.
(h) Robertson, Cha. V. i. 45.

(49) ["Limitation of a year, which runs against the appellor, if he prove not the homicide within a year from its perpetration, or bring his accusation within that time."] (50) An appeal of murder, though a suit between plaintiff and defendant, is yet a criminal proceeding. Francis v. Lewis, 11 Conn. 200, 203 (1836).

(51) ["No one is punished twice for the same offence."]

currence of all parties interested; and as the king by his pardon may frustrate an indictment, so the appellant by his release may *discharge [*317 an appeal;(7) "nam quilibet potest renunciare juri pro se introducto." (52)

These are the several methods of prosecution instituted by the laws of England for the punishment of offences, of which that by indictment is the most general. I shall therefore confine my subsequent observations principally to this method of prosecution; remarking, by the way, the most material variations that may arise from the method of proceeding by either information or appeal.

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

*WE are next, in the fourth place, to inquire into the manner of [*318 issuing process, after indictment found, to bring in the accused to answer it. We have hitherto supposed the offender to be in custody before the finding of the indictment, in which case he is immediately (or as soon as convenience permits) to be arraigned thereon. But if he hath fled or secretes himself in capital cases, or hath not in smaller misdemeanors been bound over to appear at the assizes or sessions, still an indictment may be preferred against him in his absence; since, were he present, he could not be heard before the grand jury against it. And if it be found, then process must issue to bring him into court; for the indictment cannot be tried unless he personally appears, according to the rules of equity in all cases, and the express provision of statute 28 Edw. III. c. 3 in capital ones, that no man shall be put to death without being brought to answer by due process of law.

(i) I Hal. P. C 9.

(52) ["For anyone may relinquish a right introduced for his own avail."] These appeals had become nearly obsolete; but the right still existing was claimed, and in part exercised in the year 1818, by William Ashford, eldest brother and heir-at-law of Mary Ashford, who brought a writ of appeal against Abraham Thornton for the murder of his sister. Thornton had been tried at the Warwick Summer Assizes, 1817, for the murder, and acquitted, though under circumstances of strong suspicion. The appellee, when called upon to plead, pleaded "not guilty, and that he was ready to defend himself by his body;" and, taking his glove off, he threw it upon the floor of the court. A counterplea was afterwards delivered in by the appellant, to which there was a replication. A general demurrer followed, and joinder thereon. See a full detail of the proceedings in that singular case, in the report of it under the name of Ashford v. Thornton, 1 B. & A. 405. It was held in that case that where in an appeal of death the appellee wages his battle, the counterplea, to oust him of this mode of trial, must disclose such violent and strong presumptions of guilt as to leave no possible doubt in the minds of the court, and therefore that a counterplea which only stated strong circumstances of suspicion was insufficient. It was also held that the appellee may reply fresh matter tending to show his innocence,—as an alibi, and his former acquittal of the same offence on an indictment. But it was doubted whether when the counterplea is per se [By itself ] insufficient, or where the replication is a good answer to it, the court should give judgment that the appellee be allowed his wager of battle, or that he go without day. Therefore, the appellant praying no further judgment, the court, by consent of both parties, ordered that judgment should be stayed in the appeal and that the appellee should be discharged. This case, the first of the kind that had occurred for more than half a century, (see Bigby v. Kennedy, 5 Burr. 2643, 2 W. Bl. 713. Rex v. Taylor, 5 Burr. 2793. Smith v. Taylor, id. ibid, the last cases upon the subject, where the mode of proceeding is detailed at large,) led to the total abolition of appeals of murder, as well as of treason, felony, or other offences, together with wagers of battle, by the passing of the statute 59 Geo. III. c. 46. -CHITTY.